DPP v Ivanovic

[2003] VSC 392

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1457 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS IVANOVIC

Ruling No. 5

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2003
DATE OF RULING:	17 September 2003
CASE MAY BE CITED AS:	DPP v Ivanovic
MEDIUM NEUTRAL CITATION:	[2003] VSC 392

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CRIMINAL LAW – Murder – Evidence – Out of Court statements by accused to third party months before killing as to accused's state of mind or belief inadmissible – Walton v R (1988) 166 C.L.R. 283.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr W. Morgan-Payler Q.C.	Office of Public Prosecutions
For the Accused	Mr R. Richter Q.C. and Mr C. Rozencwajg	Theo Magazis

HIS HONOUR:

1. Learned senior counsel, Mr Richter, in cross-examination of the present witness Mr Arico, has sought to lead out of court statements by the accused to this witness as to the accused's state of mind made many months before the relevant events, which events occurred on 8 January 2002.  Objection has been taken to the material by Mr Morgan-Payler for the prosecution on the basis that the material is inadmissible as it is hearsay.  Plainly the material is relevant to the issues joined because it goes to the state of mind of the accused on 8 January 2002, albeit expressed many months before.

1. The short question is whether the evidence is admissible.  In my view it is not admissible.  I consider it is classically hearsay, that is, it is being led to the truth of its contents;  and is a self-serving out-of-court statement by the accused.  It is not being led as to the fact of its utterance but is being led as proof that the accused in fact believed or feared what he said he believed or feared.  Of course, if the accused gives evidence, he can give direct evidence of his state of mind including months before 8 January 2002.  This witness, Mr Arico cannot be cross-examined about the truth of those out of court statements, because all he can reply is to say, "I simply heard him say it". Ergo, hearsay.  Further, the material is not sought to be led as information in the accused's hands.  Such information (whether or not properly founded) would be admissible because it is not led as to the truth of its contents.  The material here sought to be led is of the accused's state of mind and belief – that is, that he in fact believed or feared what he said he believed or feared (whether or not properly founded).  Such material through this witness is hearsay.

1. Next, in my view the case does not come under the principle in Walton v The Queen[1] of matter in which there is a close temporal connection between utterance and event.  This has no such temporal connection, but indeed is far removed.

   [1](1988) 166 CLR 283 (particularly at pp.304-305 per Wilson, Dawson and Toohey JJ.).

1. Finally, I am unpersuaded by Mr Richter's submission that these are "verbal acts".  Such disembodied matter cannot simply remain suspended in mid air, but comes into a trial as evidence because it is to be utilised.  This is not a conspiracy case.  The plain use here, as Mr Richter revealed on more than one occasion during his submissions to me whilst eschewing it, is that the statements are to be used as proof of the truth of their contents.  That evidence can come from the accused if he is called.  It can come by other admissible means but it cannot come in a hearsay form.

1. Accordingly I rule that the evidence sought to be led through this witness, Mr Arico, of statements of fear by the accused months before the event is inadmissible.